How the OPP’s privacy policy can impact your car accident case

Privacy is all the rage these days. It’s a very “chic” topic amongst lawyers, bureaucrats and politicians alike.

Don’t want to disclose a document? Tell the other side that you have privacy concerns. Lawyers will say that the document is privileged. Then the lawyers can wait a year to duke it out in Court before a Judge.

Government office doesn’t want to disclose a document to a prodding newsie? Privacy.

In personal injury cases, we lawyers rely on police officers and government offices to get critical source data to help build, and better establish our clients’ cases. In order to get to the bottom of the accident, we need to carefully examine to Motor Vehicle Accident Report, Photographs, Witness Statements, Accident Reconstruction Reports, Audio Tapes, Video Tapes and any hand written polices officers notes. Without this information, it would be very difficult, if not impossible for lawyers to make a case in your favour; better yet even understand who the at-fault party is and how the accident happened.
Very often, these source documents are turning up to our office, and to countless other plaintiff lawyer offices, redacted. This means that the documents are blacked out, and it’s impossible for the lawyer to obtain the un-redacted information without a Court Order.

Want to know who the at-fault party is? Redacted. Want to know their address? Redacted. Want to know the license plate number? Redacted. Want to know their insurance company or date of birth? Redacted.

This has posed a large barrier for innocent accident victims in presenting and advancing their claims.

I know what you’re thinking. How on earth does this affect me? Good question.

If you’ve been hit by a car; you may not know the name or insurance information of the at-fault driver or any witnesses to your car accident. If you have to claim accident benefits from the at-fault driver’s policy of insurance, having their name, address and insurance information redacted will delay your ability to claim and recover those benefits. This means you won’t get paid any interim benefits for a VERY long time.

Taking it one step further, let’s say that you don’t retain a lawyer until just before your two year limitation period. You then retain a lawyer and want to sue the at-fault driver. But, upon investigating the police documentation you and your lawyer find out that the name, address, contact info, insurance info and license plate number for the at-fault driver has all been redacted.

Your lawyer, will then need to name that at-fault driver as either John Doe or Jane Doe. Your lawyer also won’t be able to know if the driver was also the owner of the vehicle, or if there was a separate owner which needs to be named in the Statement of Claim. We also won’t know if there’s any proper insurance to indemnify you for your injuries.

Once you’ve named the parties as either John Doe or Jane Doe, your lawyer will then need to bring TWO motions before the Court. The first is under Rule 30.10 of the Rules of Civil Procedure in Ontario for production of the complete and unedited police file including all of that good un-redacted information which will lead us to our bad guy. We hope that the at-fault driver is still alive, or still in Ontario as this could present some service issues. The second motion will be to Amend the Statement of Claim to substitute the name John Doe/Jane Doe for the proper name of the Defendant.

These sort of motions are almost always opposed by insurance companies. And why not? It’s a good opportunity for them to thwart your claim before it even stands a fighting chance. Often, we see Masters in Toronto permit the Amendment of the Claim to substitute the name of the proper party; but leave is granted to the Defendant to plead that a limitation period has expired.

What this does is leave open the door for the Defence to bring a summary judgment motion against you in an attempt to have your claim kicked out of Court.

Recently, the Ontario Trial Lawyers’ Association has lobbied the OPP to put an end to their draconian redaction policy. Basically, every time you got an OPP Motor Vehicle Accident Report, it came back all blacked out with the exception of your client’s details. It was completely useless which made it necessary for lawyers to bring motions before a Judge. This just delayed these cases and put them at greater risk not only for the prompt recovery of accident benefits but also ran the risk of a limitation period expiring. All of this was done in the name of privacy.

I can tell you that the OPP did NOT have this policy in the 1970’s, 1980’s, 1990’s or the early 2000’s. Their policy was revised just before 2010 and has changed significantly since. All in the name of privacy.

I’m glad that the OPP cares about protecting our privacy, but not at the expense of jeopardizing people’s rights when a properly executed Release/Authorization has been signed in accordance with the laws of Ontario to release that information.

My take on it? It’s much easier for the OPP to redact then not redact. Better safe than sorry. An even more honest take that the OPP won’t like to hear. Well here you go; uncensored. Any lazy person can redact. An uneducated teenager can redact. Redacting an ENTIRE document is easy and takes no thought. What to leave in and what to leave out takes some thought and takes some time. Redacting entire documents under the guise of privacy like I’ve been seeing over the past 5 years is an exercise in laziness; not concern for the community’s privacy.

In criminal courts, the accused is afforded the opportunity to see their accuser in open Court. The accused has the right to know who is accusing them of a crime. Why the same doesn’t apply to the civil process for personal injury law baffles me. The OPP makes innocent accident victims, particularly minor and pedestrians jump through hoops in or for them to ascertain the identity of the wrong doer.

Reaction to Toronto Streetcar Shooting of by Police of Sammy Yatim. We don’t know all of the facts yet, so I will remain relatively silent except we can all agree that it’s a tragedy. What I DON’T UNDERSTAND is why the officer which shot Sammy, fired 9 bullets; and then fired his taser gun.

Let me think: Shoot 9 lethal bullets FIRST; then whack him while he’s down with a non-lethal electro-shock taser?

Hey dummy: You got a taser; how about using it first before you whip out the heavy lethal ammunition.

The officer was probably fearing his life; just like George Zimmerman did. A teenager cornered on a street car with a knife surrounded by 9 officers is pretty scary. Even if he did call the officer a rude name; does that constitute open ground to shoot?

But I shouldn’t be too snippy. I respect that officers risk their lives every day on the job. Like when they sit by idle on Bayview Avenue just south of Steeles handing out speeding tickets to Sunday drivers. Like when they escort funeral processions or celebrities to big events. Or like when they’re supervising the construction work on Avenue Road for the dug up sewer lines. OK, enough ripping on the Toronto’s finest. Likely a hot head cop looking for some action, and getting a little trigger happy. Or maybe not. Let’s see what the evidence shows.

For all of the municipal politicians and people at the Toronto Police Board who are shunning civilian witnesses for video taping this incident instead of “doing something“….what did you expect a civilian witness to do? Call the police? They were already there? Burst into action like Superman? Nope. I’m thankful people took video so the police know that people are watching them to keep the officers accountable for their actions.

Let’s say this Toronto Streetcar Shooting took place in the 1960’s or 70’s. All of the officers would probably corroborate their evidence and say that Sammy was wielding a giant axe and was swinging it violently so they had to shoot because he posed a threat to their lives and the lives of the general public. The story never would have made the news.